County of Dunn v. Kevin J. Cormican ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 7, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP1895 Cir. Ct. Nos. 2019TR2939
2019TR4074
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
COUNTY OF DUNN,
PLAINTIFF-RESPONDENT,
V.
KEVIN J. CORMICAN,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Dunn County:
JAMES M. PETERSON, Judge. Affirmed.
¶1 GILL, J.1 Following a bench trial, the circuit court found
Kevin Cormican guilty of operating a motor vehicle while intoxicated (OWI), as a
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP1895
first offense. Cormican now appeals, arguing that the court erred by denying his
motion to suppress the results of an evidentiary chemical test of his blood.
Cormican argues that his consent to the blood test was invalid because the
arresting deputy provided additional information, beyond that set forth on the
Informing the Accused Form (“ITA Form”), which was misleading and affected
his decision to consent to the blood test. Cormican also argues that his consent to
the blood test was involuntary under the totality of the circumstances. We reject
these arguments and affirm.
BACKGROUND
¶2 On May 27, 2019, Dunn County Sheriff’s Deputy Chad Pollock
stopped a vehicle operated by Cormican for speeding.2 After additional
investigation, Pollock placed Cormican under arrest for first-offense OWI.
Pollock subsequently told Cormican, “I know you mentioned you have a CDL
[commercial driver’s license] and stuff in Wisconsin …. First offense is a traffic
citation. There are some penalties involved, but, you know, I don’t think it’s the
end of the world, or the end of the road there for the, um, CDL.”
¶3 After placing Cormican under arrest, Pollock transported him to a
hospital for a blood draw. On the way, Cormican said to Pollock, “I’m just
wondering how fucked up my life’s gonna be over this.” Pollock responded, “I
know guys with CDLs that have first offenses, so I know they don’t, you know,
lose them …. I know there’ll be penalties, but I don’t know exactly what—how
that all works. I just know it’s not a definite thing.”
2
A video of the traffic stop and of Pollock’s subsequent conversations with Cormican
was introduced into evidence at the suppression hearing.
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¶4 At the hospital, Pollock read Cormican the ITA Form promulgated
by the Wisconsin Department of Transportation, which contains information that a
law enforcement officer is statutorily required to read to a person when requesting
a sample of the person’s breath, blood, or urine for evidentiary chemical testing.
See WIS. STAT. § 343.305(3)-(4). After reading Cormican the ITA Form, Pollock
asked whether Cormican was willing to submit to an evidentiary chemical test of
his blood. Cormican responded, “So what happens if I say no?” Pollock replied,
“I cannot give you legal advice, but I can read right here [on the ITA Form] that it
says, ‘If you refuse to take any test that this agency requests, your operating
privileges will be revoked and you will be subject to other penalties.’”
¶5 Cormican then asked what those other penalties would include.
Pollock responded that he did not know all the penalties, but “I do know that, if
you refuse the test, the state will just automatically take your privileges away. If
you submit to the test, there may be some penalties involved from positive test
results.” Pollock continued:
I guess the bottom line is, the state, when you get your
license, you kind of sign off and say that you promise that
you’re gonna be a legal driver all the time without a
substance in your system ... [by] substance, I mean alcohol.
I mean, they’re just saying that when you get your license,
you’re telling them that, “Yep, I’m not gonna do this.”
And you’re—and that’s what the implied consent is, that
when you get your license, you’re basically implying your
consent to the state, saying, “Yep, you can test me any
time; I’m not gonna be over the limit.” But, you know, I
can’t really give you legal advice, it’s just a yes or a no.
But I do—you know, as the form clearly states, if you just
automatically say “no,” the state will just up and take it.
Cormican responded, “I guess I have nothing [unintelligible]. Let’s go ahead and
test.” Pollock then stated, “I think, you know, in your situation it’s probably the
best way to go.”
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¶6 Cormican was ultimately issued a citation for first-offense OWI in
Dunn County case No. 2019TR2939. Based on the same incident, Cormican was
also cited for operating a motor vehicle with a prohibited alcohol concentration
(PAC) in Dunn County case No. 2019TR4074. Cormican moved to suppress the
results of his blood test in both cases, arguing that he did not validly consent to the
test because Pollock improperly influenced his decision to consent. More
specifically, Cormican argued that his consent was invalid because: (1) Pollock
exceeded his duty under WIS. STAT. § 343.305(4) by providing additional
information, beyond that included on the ITA Form; (2) the additional information
was misleading; and (3) the misinformation affected Cormican’s choice to consent
to the blood test. See County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542
N.W.2d 196 (Ct. App. 1995), abrogated on other grounds by Washburn County v.
Smith, 2008 WI 23, ¶64, 308 Wis. 2d 65, 746 N.W.2d 243. Cormican also argued
that his consent was involuntary because Pollock “engaged in an unlawful attempt
to incentivize [his] consent.”
¶7 The circuit court held a suppression hearing, at which both Cormican
and Pollock testified. Cormican testified that Pollock’s statements that Cormican
would automatically lose his operating privilege if he refused to consent to the
blood test and that there “may be” penalties due to a positive test result
“[a]bsolutely” affected his decision to consent. Cormican asserted, “I felt like I
didn’t have a choice. It was—I wasn’t going to win if I said no, I was just out, and
if I said yes, there might be a chance.” Cormican also testified that Pollock’s
statement about Wisconsin’s Implied Consent Law led him to believe “that [he]
had already agreed to take the test by getting [his] driver’s license.” Cormican
testified that he “felt like [he] didn’t really have a choice because [he] had a
driver’s license and [he] already gave that implied consent.”
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No. 2020AP1895
¶8 Cormican also testified that he remembered Pollock telling him that
Pollock “knew somebody with a CDL and it wasn’t the end of the road getting an
OWI.” When asked whether his OWI citation had been the “end of the road” for
him, Cormican responded, “Pretty much at this point. It’s been pretty severe.” He
explained: “[E]ven though I haven’t been to court for it, I have not been able to
drive for my company. It’s cost me a lot of lost hours at work and responsibilities
taken away from me because I can’t drive the company vehicles.” Cormican
subsequently clarified that those employment consequences were due to an
“administrative suspension.” The circuit court took judicial notice that
“administrative suspensions occur when someone submits to a test and it shows a
prohibited alcohol concentration.”
¶9 On cross-examination, Cormican agreed that near the end of his
discussion with Pollock, Pollock “explained that he needed a yes-or-no answer on
the form.” Cormican conceded that at that point, he “understood that [he] had a
decision to make” about whether to consent to the blood test.
¶10 The circuit court denied Cormican’s suppression motion. The court
agreed with Cormican that Pollock had exceeded his duty under WIS. STAT.
§ 343.305(4) by providing additional information, beyond that included on the
ITA Form. The court concluded, however, that Pollock’s statements were not
misleading. In addition, the court concluded Cormican had not met his burden to
show that Pollock’s statements affected his decision to consent to the blood test.
¶11 Following a bench trial, the circuit court found Cormican guilty of
both the OWI and PAC citations. Pursuant to WIS. STAT. § 346.63(1)(c),
judgment was entered on only the OWI citation. Cormican now appeals, arguing
that the court erred by denying his suppression motion.
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No. 2020AP1895
DISCUSSION
¶12 When reviewing a circuit court’s decision on a motion to suppress
evidence, we will uphold the court’s factual findings unless they are clearly
erroneous. State v. Scull, 2015 WI 22, ¶16, 361 Wis. 2d 288, 862 N.W.2d 562.
The application of constitutional principles to those facts, however, is a question
of law that we review independently. Id.I. Pollock’s duty under WIS. STAT. § 343.305(4)
¶13 Wisconsin’s Implied Consent Law provides, in relevant part, that
any person who drives or operates a motor vehicle on the public highways of this
state
is deemed to have given consent to one or more tests of his
or her breath, blood or urine, for the purpose of determining
the presence or quantity in his or her blood or breath, of
alcohol, controlled substances, controlled substance
analogs or other drugs, or any combination of alcohol,
controlled substances, controlled substance analogs and
other drugs, when requested to do so by a law enforcement
officer.
WIS. STAT. § 343.305(2). Although “[e]very driver in Wisconsin impliedly
consents to take a chemical test for blood alcohol content,” a person “may revoke
consent … by simply refusing to take the test.” Quelle, 198 Wis. 2d at 277 (citing
§ 343.305(2), (9)). “Thus, a driver has a ‘right’ not to take the chemical test
(although there are certain risks and consequences inherent in this choice).” Id.
The legislature has “recognized that drivers being asked to take a chemical test
should be informed of this choice,” and it has therefore required that a law
enforcement officer read a person the information set forth in § 343.305(4) when
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No. 2020AP1895
requesting a chemical test. Quelle, 198 Wis. 2d at 277. The ITA Form contains
the same information that is set forth in § 343.305(4).
¶14 Here, it is undisputed that Pollock read Cormican the ITA Form and
therefore provided the information mandated by WIS. STAT. § 343.305(4).
Cormican argues, however, that his consent to the blood test was nevertheless
invalid because Pollock also provided him with additional information, beyond
that included on the ITA Form. Under these circumstances, we must assess the
adequacy of the information provided using the three-prong test set forth in
Quelle. See Smith, 308 Wis. 2d 65, ¶64 & n. 57 (clarifying that the Quelle test
applies when an officer satisfies his or her duty under § 343.305(4) but then
supplies additional information, beyond that set forth in the statute). To obtain
relief under that test, a defendant must show that: (1) the officer exceeded his or
her duty under § 343.305(4) to provide information to the accused driver; (2) the
oversupply of information was misleading; and (3) the officer’s failure to properly
inform the driver affected the driver’s ability to make a choice about chemical
testing. Quelle, 198 Wis. 2d at 280; see also State v. Reitter, 227 Wis. 2d 213,
233, 595 N.W.2d 646 (1999).
¶15 Cormican contends that Pollock exceeded his duty under WIS. STAT.
§ 343.305(4) by stating that: (1) the state would “automatically” take Cormican’s
operating privilege away if he refused to consent to a blood test; and (2) Cormican
had already consented to the blood test by virtue of obtaining a Wisconsin driver’s
license. We conclude that neither of these categories of statements satisfies all
three prongs of the Quelle test.
¶16 First, Pollock’s comments indicating that the state would
“automatically” take away Cormican’s operating privilege if Cormican refused to
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No. 2020AP1895
consent to a blood test were consistent with the information contained on the
ITA Form, which an officer is statutorily required to read to a person when
requesting an evidentiary chemical test. See WIS. STAT. § 343.305(4). The statute
requires an officer to inform a person that “[i]f you refuse to take any test that this
agency requests, your operating privilege will be revoked and you will be subject
to other penalties.” Id. (emphasis added). Pollock read this language from the
ITA Form to Cormican. The ITA Form’s statement that a person’s operating
privilege “will be revoked” if the person refuses to take a requested test conveys
the same meaning as Pollock’s subsequent statement to Cormican that the state
would “automatically” take away Cormican’s operating privilege if he refused to
consent to a blood test. Both statements communicate that if an individual refuses
a requested test, the revocation of his or her operating privilege will necessarily
occur. As such, Cormican’s statements about the automatic revocation of
Cormican’s operating privilege did not go beyond the information required by
§ 343.305(4), nor were those statements misleading. See Quelle, 198 Wis. 2d at
280.
¶17 Cormican argues that these statements were misleading because the
revocation of a person’s operating privilege does not, in fact, occur automatically
when a person refuses a requested test. Cormican cites WIS. STAT. § 343.305(9),
which states that when a person refuses to take a requested test, “the law
enforcement officer shall immediately prepare a notice of intent to revoke … the
person’s operating privilege.” Sec. 343.305(9)(a). The notice must inform the
person that he or she may request a refusal hearing. Sec. 343.305(9)(a)4. During
that hearing, a court must determine whether the person improperly refused to take
the requested test. Sec. 343.305(9)(c). If the court finds that the person did not
improperly refuse to take the test, “the court shall order that no action be taken on
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the operating privilege on account of the person’s refusal to take the test in
question.” Sec. 343.305(9)(d).
¶18 Cormican argues that Pollock’s comments about the state
automatically taking away his operating privilege were misleading because they
“erroneously implied a summary nature of the revocation proceedings” and did not
acknowledge Cormican’s ability to request a refusal hearing. As both the circuit
court and Dunn County have correctly noted, however, WIS. STAT. § 343.305(4)
does not require an officer to inform a person about his or her ability to request a
refusal hearing. Instead, under the statute, an officer is merely required to tell the
person that “[i]f you refuse to take any test that this agency requests, your
operating privilege will be revoked and you will be subject to other penalties.”
Sec. 343.305(4) (emphasis added). If we concluded that Pollock’s statements
regarding the automatic revocation of Cormican’s operating privilege were
misleading, then, logically, it would follow that § 343.305(4) is also misleading
because it fails to inform a person that his or her operating privilege may not be
revoked if the person requests, and prevails at, a refusal hearing. Cormican does
not develop any argument that § 343.305(4) is misleading or otherwise invalid.
Because Pollock’s statements about the “automatic” revocation of Cormican’s
operating privilege were consistent with § 343.305(4), which must be read to an
accused, we reject Cormican’s argument that those statements were misleading.
¶19 Cormican also argues that Pollock exceeded his duty under WIS.
STAT. § 343.305(4) by stating that Cormican had already consented to the
requested blood test by virtue of obtaining a Wisconsin driver’s license.
Dunn County concedes that this statement satisfies the first prong of the Quelle
test because it went “beyond what [§ 343.305(4)] provides.” See Quelle, 198
Wis. 2d at 280. Nevertheless, we agree with Dunn County that this statement was
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No. 2020AP1895
not misleading under the second prong of the Quelle test and that the statement did
not affect Cormican’s decision to consent to a blood test under the third prong of
the Quelle test. See id.
¶20 As noted above, the Implied Consent Law expressly provides that
any person who drives or operates a motor vehicle on the public highways of this
state “is deemed to have given consent to one or more tests of his or her breath,
blood or urine.” WIS. STAT. § 343.305(2). Thus, the Implied Consent Law
“impose[s] a condition on the right to obtain a license to drive on a Wisconsin
highway,” and that condition “requires that a licensed driver, by applying for and
receiving a license, consent to submit to chemical tests for intoxication under
statutorily determined circumstances.” Scales v. State, 64 Wis. 2d 485, 494, 219
N.W.2d 286 (1974); see also Reitter, 227 Wis. 2d at 225 (“The implied consent
law provides that Wisconsin drivers are deemed to have given implied consent to
chemical testing as a condition of receiving the operating privilege.”). Here,
Pollock told Cormican that “when you get your license, you’re basically implying
your consent to the state” to perform evidentiary chemical testing. That statement
was consistent with Scales and Reitter, which were in effect at the time of the
traffic stop.
¶21 After the traffic stop took place, our supreme court issued its
decision in State v. Prado, 2021 WI 64, 397 Wis. 2d 719, 960 N.W.2d 869. The
Prado court explained that there is a difference between consent “deemed” by
statute, such as implied consent, and “actual consent.” See id., ¶44. The court
concluded that “deemed” consent is not enough for a warrantless blood draw to
satisfy the Fourth Amendment; instead, “actual” consent to the blood draw is
required. Id., ¶46. The court therefore held that the incapacitated driver provision
of the Implied Consent Law—which allowed law enforcement to presume that an
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incapacitated driver had not withdrawn his or her consent to an evidentiary
chemical test—was unconstitutional because it allowed a test to be performed
without a warrant based on deemed, rather than actual, consent. Id., ¶¶3, 46, 54.
¶22 We agree with Dunn County that even after the supreme court’s
decision in Prado—which was not yet in effect at the time of the stop in this
case—Pollock’s statement about implied consent was not misleading. Prado held
that a person’s deemed or implied consent is insufficient to permit law
enforcement to perform an evidentiary chemical test without a warrant; instead,
the person’s actual consent to the test is required. Here, Pollock stated that a
person implies his or her consent to an evidentiary chemical test by obtaining a
Wisconsin driver’s license. That statement is accurate under Wisconsin law.
Pollock never stated that a person gives actual consent to an evidentiary chemical
test by obtaining a Wisconsin driver’s license.
¶23 Moreover, despite referring to the concept of implied consent,
Pollock made it clear that he needed Cormican to provide a “yes” or “no” answer
regarding whether Cormican would consent to a blood test. If Cormican’s implied
consent, standing alone, were sufficient to permit law enforcement to perform a
blood test, then there would have been no need for Pollock to ask Cormican
whether he would, in fact, consent to such a test. The fact that Pollock asked for
Cormican’s consent to the blood test therefore would have communicated to
Cormican that his implied consent—given at the time he received his Wisconsin
driver’s license—was insufficient by itself to permit law enforcement to perform a
blood test.
¶24 Relatedly, under the third prong of the Quelle test, the record does
not support a determination that Pollock’s statement about implied consent
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affected Cormican’s decision to consent to the requested blood test. At the
suppression hearing, Cormican testified that Pollock’s statement about the Implied
Consent Law led Cormican to believe “that [he] had already agreed to take the test
by getting [his] driver’s license,” which made him feel “like [he] didn’t really have
a choice because [he] had a driver’s license and [he] already gave that implied
consent.” On cross-examination, however, Cormican acknowledged that near the
end of his discussion with Pollock, Pollock “explained that he needed a yes-or-no
answer on the form.” Cormican conceded that at that point, he “understood that
[he] had a decision to make” about whether to consent to the blood test. This
testimony shows that even after Pollock made his challenged statement about
implied consent, Cormican understood that he could choose not to consent to the
blood test. On this record, the circuit court found that Cormican had not shown
that Pollock’s statements “really affected his decision” to consent. The court’s
finding in that regard is not clearly erroneous.
¶25 In summary, although Cormican asserts that the results of his blood
test should have been suppressed because Pollock exceeded his duty under WIS.
STAT. § 343.305(4), none of Pollock’s challenged statements satisfy all three
prongs of the Quelle test. Accordingly, the circuit court properly determined that
Cormican was not entitled to suppression on this basis.
II. Voluntariness of Cormican’s consent
¶26 Cormican also argues that suppression was warranted because his
consent to the blood test was involuntary under the totality of the circumstances.
Consent is voluntary when it is “an essentially free and unconstrained choice” and
is not the product of duress or coercion. State v. Blackman, 2017 WI 77, ¶56, 377
Wis. 2d 339, 898 N.W.2d 774 (citation omitted). “The test for voluntariness is
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whether consent to search was given in the ‘absence of actual coercive improper
police practices designed to overcome the resistance of a defendant.’” State v.
Hughes, 2000 WI 24, ¶41, 233 Wis. 2d 280, 607 N.W.2d 621 (citation omitted).
No single factor is dispositive in making this determination. Id. “Instead, we
examine the totality of the circumstances, with special emphasis placed on the
circumstances surrounding the consent and the characteristics of the defendant.”
Id.¶27 Cormican asserts that his consent to the blood test was involuntary
because, after reading him the ITA Form, Pollock “made the misleading claims
that a refusal would automatically result in the state taking … Cormican’s license
away and that … Cormican had already given his consent to the chemical test
simply by virtue of getting his Wisconsin driver’s license.” Cormican further
asserts that Pollock “strategically contrasted” his claim that the State would
automatically revoke Cormican’s operating privilege with his subsequent
statement that “there may be some penalties involved from positive test results.”
Cormican also cites Pollock’s statements that a first-offense OWI would not
necessarily be the “end of the road” with respect to Cormican’s CDL and that
Pollock knew individuals with first-offense OWIs who had not lost their CDLs.
Finally, Cormican notes that after he consented to the blood test, Pollock stated, “I
think, you know, in your situation it’s probably the best way to go.” Based on
these statements, Cormican asserts that Pollock “encourag[ed], persuad[ed], and
falsely incentiviz[ed] him to consent to a test.”
¶28 We reject Cormican’s argument that Pollock’s statements rendered
his consent to the blood test involuntary. We have already determined that
Pollock’s statements about implied consent and about the state automatically
taking away Cormican’s operating privilege were not misleading. In addition,
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Pollock’s statement that there “may be” penalties due to a positive test result was
an accurate statement of what might occur if Cormican’s blood tested positive for
alcohol. Cormican provides no legal authority in support of the proposition that a
law enforcement officer’s accurate statements of the law can render a person’s
consent to a blood test involuntary.
¶29 As for Pollock’s statement that he knew individuals with
first-offense OWIs who had not lost their CDLs, there is nothing in the record to
show that this statement was inaccurate or otherwise misleading. As Dunn County
correctly notes, Pollock never promised Cormican that “his circumstances would
end the same” as those other individuals, nor did Pollock state that a first-offense
OWI would have “zero consequences” with respect to Cormican’s CDL. Pollock
did state that a first-offense OWI would not necessarily be the “end of the road”
for Cormican’s CDL, and we agree with Dunn County that “end of the road” is “a
somewhat subjective phrase.” In context, however, the most reasonable
interpretation of that phrase is that a first-offense OWI would not necessarily
result in the permanent loss of Cormican’s CDL. By statute, a driver is
permanently disqualified from operating a commercial motor vehicle after two
OWI convictions, not one. See WIS. STAT. § 343.315(2)(c). Thus, Pollock’s
statement that a first-offense OWI would not necessarily be the “end of the road”
for Cormican’s CDL was not inaccurate.
¶30 Finally, while Cormican cites Pollock’s statement that consenting to
a blood test was “probably the best way to go,” it is undisputed that Pollock made
that statement after Cormican had already consented to the test. The statement is
therefore irrelevant to our analysis of whether Cormican’s consent was voluntary.
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¶31 Ultimately, we conclude that none of the statements that Pollock
made before Cormican consented to the blood test were inaccurate, misleading, or
coercive. Furthermore, we observe that there is nothing in the record to suggest
that Cormican’s personal characteristics made him particularly susceptible to
pressures imposed by law enforcement. See Hughes, 233 Wis. 2d 280, ¶41
(directing us to consider the defendant’s personal characteristics in our
voluntariness analysis). We therefore reject Cormican’s argument that his consent
to the blood test was involuntary under the totality of the circumstances.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
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